In the recent case of R v Fiddes, 2019 ONCA 27 the Court of Appeal re-affirmed that violence suffered while in pre-sentence custody can be held as mitigating on sentence.
If your client has been assaulted or otherwise sustains injuries while in custody, this is another case to have in your arsenal if the case proceeds to sentencing.
Counsel really has a responsibility to argue for enhanced credit (ie. qualitative enhancement beyond 1.5) in cases where his/her client has experienced particular harshness and is able to put that harshness into evidence. In other words, Defence has a duty to create a record of that harshness.
As the ONCA stated at para 8:
"Concerning sentence, we accepted the appellant's submission that, in the particular circumstances of this case, the trial judge erred by failing to consider, as a mitigating factor on sentence, the serious injuries the appellant suffered as a result of being beaten while in pre-sentence custody. Although the trial judge noted that the appellant had been injured while in custody, she did not enumerate his injuries (four broken ribs, two punctured lungs, a brain injury); nor allude to their serious nature (life threatening). These injuries had a significant impact on the appellant and warranted serious consideration on sentencing. Given their passing mention in her reasons, we are unable to accept the Crown's submission that it is implicit in the trial judge’s reasons that she gave the fact of the injuries any mitigating effect."
This particular case came to my attention via Counsel Chris Rudnicki. He is a talented Defence Counsel and a must-follow on the twittersphere.
So it turns out that a weekly ‘case-law round up’ was a little ambitious. Alas, I will instead post randomly at best. Enjoy!
In addition to a few comments regarding Bill C-75 (no, sadly this proposed legislation was not an April Fools joke), I have noted a few recent and important cases to be aware of:
Criminal Defence Lawyers across the country were blind-sided last week by the announcement of Bill C-75. In short, this proposed legislation would bring in a number of significant changes to the way in which criminal charges are prosecuted (and defended). While the Liberal Party and their Justice Minister are attempting to sell these amendments as “bold” reforms aimed at curbing court time and delay, the proposals arguably jeopardize a number of rights and procedural safeguards that are designed to protect Accused people from prejudice and, ultimately, wrongful convictions.
Suffice to say Minister of Justice Jody Wilson-Raybould’s announcement set Criminal Defence Twitter ablaze over the weekend as legal practitioners, scholars, and observers weighed in on the proposals. With Courts closed from Friday to Monday, Defence Lawyers had ample time to voice their concerns online.
I certainly share my colleagues concerns. In particular, the removal of preliminary inquiries, pre-emptive challenges during jury selection, and the introduction of police “evidence by affidavit” will obstruct Accused persons’ ability to fairly defend themselves. Moreover, there is good reason to think that these reforms will actually increase court-time and further clog the criminal justice system. I have included commentary from some of the Defence Bar’s best and brightest below:
Welcome to the Full Court Press' new, weekend caselaw roundup. This blog will attempt to provide a brief overview of notable cases that come out over the course of the week. If you have any recommendations feel free to send them our way via twitter at @fullcourtPRS.
Given that this is our first post, we'll step out of bounds a little and go beyond the past week.
R. v. Walia, 2018 ONCA 197
R. v. G.T.D., 2018 SCC 7
R. v. Vitalis, 2018 ONCJ 43
A Scopelliti motion is a critical tool available to an accused person claiming self defence when charged with murder. As the case of R. v. Jackson reveals, however, this motion can be preemptively denied on the basis that--when considered alongside the Crown's counter application to admit bad character evidence of the accused--it might create a lengthy (and therefore prejudicial) side issue.
Using Rosenberg J.A.'s Court of Appeal dissent in Jackson as a guide, this case comment argues that such reasoning risks the unwarranted exclusion of relevant defence evidence. By returning to first principles, Rosenberg J.A.'s dissent provides a nuanced solution whereby bad character evidence of both the deceased and the accused can be selectively admitted without short-circuiting the Scopelliti analysis at trial. This principled approach effectively estops the Crown from using legitimate concerns regarding trial fairness as a sword as opposed to a shield.
18 Can. Crim. L. Rev. 331
The full article can be viewed at via Westlaw here.
The crisis of Aboriginal over-incarceration in Canada is one of the most well-documented features of our Criminal Justice System. This crisis is especially profound in the youth context. While the Youth Criminal Justice Act (YCJA) has reduced Canada's overall youth incarceration rate in recent years, the relative proportion of detained Aboriginal youth has actually increased. This article explores Aboriginal youth overrepresentation in correctional services under the YCJA in an attempt to discern why it has been less effective at reducing custody rates for Aboriginal youth compared to their non-Aboriginal peers.
This article suggests that the YCJA has failed to remedy Aboriginal youth overrepresentation because it has focused too heavily on sentencing principles and judicial discretion. It is argued that more attention must be paid to the earlier stages of the criminal justice process during which Police, Crown Attorneys, and Probation Officers exercise low-visibility discretion in ways that disproportionately circumscribe the eventual range of sentencing options available to Aboriginal youth offenders.
[Alberta Law Review, Vol. 52, No. 4, 2015]
The full article can be viewed via Quicklaw here.
This article explores the potential for an Aboriginal offender's presumed level of dangerousness to functionally preclude s. 718.2(e)'s substantive application in Dangerous Offender (DO) proceedings. This article explores the core variables that factor into the ‘dangerousness equation’ before a final conclusion is reached by the courts. In particular, risk of recidivism and prospect of rehabilitation are identified. Ultimately, this article argues that these variables often function to produce an inflated risk score coupled with a deflated prospect of rehabilitation for Aboriginal offenders such that they are subject to a disproportionate number of DO designations. In short, the Gladue analysis is too often undertaken too late in the sentencing proceedings. As such, it is argued that the proper application of s. 718.2(e) during a DO hearing should involve an assertive, substantive infusion of the Gladue considerations into the heart of the assessment process.
This article calls on practitioners to pre-emptively utilize the vast knowledge of colonialism's enduring legacy in an attempt to challenge the preliminary assumptions that often prove determinative in the sentencing of Aboriginal offenders and potential DOs in particular.
20 Can. Crim. L. Rev. 77
The full article can be viewed via Westlaw here.